Turner v. State
2013 Ark. 421
Ark.2013Background
- Kenneth Lamar Turner was convicted in 1998 of aggravated robbery and theft and sentenced to an aggregate 65 years; the conviction was affirmed on direct appeal.
- In 2010 Turner filed pro se petitions under Act 1780 seeking scientific/DNA testing of a white cap, a pink bandana, blonde hairs found on those items, a moccasin shoe, and a pair of jeans recovered after the robbery.
- At trial Turner had observed the hairs on the cap and bandana, told the judge and jury the hairs were not his, and unsuccessfully requested testing at trial.
- The Pulaski County Circuit Court denied Turner's postconviction petition as untimely and found the items were available at trial.
- Turner appealed and moved for appointment of counsel; the Arkansas Supreme Court reviewed the petition under Act 1780 (new scientific evidence/actual innocence standard).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under Ark. Code Ann. § 16-112-202(10) (36-month presumption) | Turner argued the petition was timely because the evidence he sought to test was newly discovered. | State argued the petition was untimely and subject to the 36-month presumption which Turner failed to rebut. | Court held petition was untimely; Turner knew of the items/hairs at trial and thus failed to rebut the presumption against timeliness. |
| Scope/cognizability of claims under Act 1780 | Turner raised additional claims (credibility, prosecutorial misconduct, due process, ineffective assistance) and sought testing to revisit the merits. | State argued Act 1780 petitions are limited to claims grounded in new scientific evidence/testing of physical evidence proving actual innocence. | Court held those collateral claims are not cognizable under Act 1780; petition limited to scientific-testing issues proving actual innocence. |
| Motion to appoint counsel / viability of appeal | Turner requested appointed counsel to pursue the appeal. | State: appeal should be dismissed because appellant cannot prevail. | Court dismissed the appeal as Turner could not prevail and therefore the motion to appoint counsel was moot. |
Key Cases Cited
- Strong v. State, 372 S.W.3d 758 (Ark. 2010) (limits Act 1780 petitions to new scientific evidence claims)
- Douthitt v. State, 237 S.W.3d 76 (Ark. 2006) (describes predicate requirements for testing under statute)